Emmanuel Masanja vs Republic (Criminal Appeal No. 394 of 2020) [2022] TZCA 443 (15 July 2022)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA ( CORAM: MWARI3A. 3.A., SEHEL. J.A.. And MAIGE. J J U CRIMINAL APPEAL NO. 394 OF 2020 EMMANUEL MASAN3A .... . ........... .. .................... . ....... ....APPELLANT VERSUS THE REPUBLIC . ....... . ....... ...... . ............... . ..... . ....... . RESPONDENT (Appeal from the decision of the Court of the Resident Magistrate Of Bukoba at Bukoba) (Kiwonde. RM-Ext-3ur.^ dated the 7th day of May/ 2020 in RM Criminal Appeal No. 47 of 2020 JUDGMENT OF THE COURT 6th & 15thJuly, 2022 MAIGE, J.A.: At the District Court of Biharamulo (the trial Court), the appellant, Emmanuel Masanja, was charged with the offence of rape contrary to section 130 (1) and (2) (e) of the Penal Code, [Cap. 16, R.E., 2002] "the Penal Code". The allegation was that, on 31st January, 2018, at 11: 00 hours at Rusenge village within Biharamulo District in Kagera Region, the appellant had carnal knowledge of PW6, a young girl of five (5) years

(name withheld). Upon trial, the appellant was found guilty of the offence and sentenced to 30 years imprisonment. His first appeal to the Court of the Resident Magistrate of Bukoba (Kiwonde, RM- Ext. Jur.) herein after referred as, the first appellate court, failed and henceforth the instant appeal. The prosecution case at the trial court was built from the evidence of six witnesses including the victim herself (PW6), her sister Christina Cosmas (PWl), her mother Heltena Tangawizi (PW3) and Bahati Barnabas (PW4), the medical doctor who examined the victim. Other witnesses were G6251 DC Glavery (PW2), the police officer at Kalenge Police station who received the complaint from PWl and interrogated the appellant and WP. 3828 D/SGT Elizabeth (PW5), the Woman police officer who investigated the crime. On top of that, the prosecution placed reliance on the medical report (exhibit PI) which was tendered in evidence by PW4. Briefly stated, the substance of the prosecution evidence can be summarized as follows. The appellant had been until on the material date and time herein mentioned, in the service of the father of the victim as a herdsman. As a domestic servant, the appellant used to stay with the family of his employer which consisted among others, PWl, PW3 and

PW6. On the material date and time, PW1 while on her way to the well to fetch water, she heard a noise of a crying person which she suspected to be of the victim coming from the maize farm. She went there to see what was wrong. She was surprised to see the appellant laying on the top of the victim while naked. The victim was naked too. She raised an alarm and the appellant ran away. PW1 inspected the victim on her private parts and found some blood. On arriving home, she found the appeilant absent and his clothes missing. She reported the matter to the village chairperson and then police. The victim was rushed to hospital and on medical check-up, it was established as per exhibit PI that, she had been raped. There were sperms and bruises together with blood in her vagina, PW4 testified. According to the evidence of PVV2, the appellant was produced to police on the next day by the village chairman, the victim's parents and sister. PW5 added that, in her oral interrogation with the appellant, he confessed to have raped the victim because of "tamaa ya mwHi" In his defence evidence, the appellant denied committing the offence alleging that, the story had been fabricated by the victim's father 3

because of the grudges he had with him. In particular/ he testified as follows: "Your Honour the testimony o f the doctor is not true because I used to graze the cattie o f Cosmas for three years and I used to stay there at his house. When I decided to demand my payment which is one cow for each year he toid me to wait and after four days I wondered to be planted with the said rape case. He toid me that I have raped her chiid while I did not rape her. I left also my crops there at his place because he gave me the farm to dig and use it. I pray the court to help me because I have no parents and he took me from faraway" In its judgment, the trial court relied on the evidence of the victim (PW6) as corroborated by that of PW1 and PW4 together with the evidence in exhibit PI to sustain conviction. On whether the defence evidence raised any reasonable doubt, the trial court observed as follows: "Although the accused person disputed that he raped the victim but he admitted that he used to stay with the victim's family and he used to graze their cows and he was given also a farm to use it. Therefore, the question that the said case was 4

planted to him only because he claimed his salaries from the victim's father does not hold water at all since the victim herself told the court on how he raped her". On the first appeal, exhibit PI was expunged from the record for being not read out after its admission. That notwithstanding, the first appellate court was of the opinion that, the oral evidence of PW6, PW3, PW4 and PW1 was sufficient to establish the charge beyond reasonable doubt. It thus upheld the conviction and sentence. In this second appeal, the appellant has raised five grounds of appeal which can be summarized as follows: 1 . The principle in Robinson Mwanjisi v. R [2003] TLR 218 and Aneth Furaha and Others v. R, Criminal Appeal No. 161 of 2018 were Wrongly applied in upholding the conviction by the trial court. 2. There was no sufficient evidence to prove the offence o f rape. 3. The age o f the victim was not proved. 4. The appellant was convicted basing on the evidence in PF3 which was wrongly received and which related to the examination o f not the victim but her sister. 5. The evidence o f PW1 was unreliable for want o f corroboration. 5

At the hearing, the appellant appeared in person without any representation. When invited by the Court to address the appeal, he adopted the grounds of appeal and urged the Court to allow the appeal. On the other hand, the respondent enjoyed the service of Nestory Paschal Nchiman, learned Senior State Attorney and Juma Mahona, learned State Attorney. Mr. Nchiman who was the lead counsel, started his submissions by addressing three points of law which he submitted are apparent on the face of the record. The first issue is on the propriety of the admission of the evidence of PW6. He submitted that, since PW6 was a child of tender age, the trial court could not take her evidence unless the mandatory conditions in section 127 (2) of the Evidence Act Cap. 6 [R.E. 2022] was complied with. From the record, he submitted, though PW6 testified without oath or affirmation, she did not promise to tell the truth and not lies. He submitted however that, in view of the principle in Wambura Kiginga v.R, Criminal Appeal No. 301 of 2018 (un reported), the omission is curable under section 127 (6) of the Evidence Act. It allows a trial court to rely on the only independent evidence of a child of tender age or victim 6

of the sexual offence to find an accused person's conviction. It provides as follows: "(2) A child o f a tender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to tell the truth and not to tell any lies " The above provision has been consistently construed by the Court to mean that, giving a promise to tell the truth and not lies is a condition precedent for admissibility of the evidence of a child of tender age which is given without oaths or affirmation. For instance, in Godfrey Wilson v. R, Criminal Appeal No. 168 of 2018 (unreported), it was held that: "To our understanding, the above provision as amended, provides for two conditions. One, it allows the child o f tender age to give evidence without oaths or affirmation. Two, before giving evidence, such child is mandatoriiy required to promise to tell the truth to the court and not to tell lies". See also: Issa Saium Nambuluka v. R, Criminal Appeal No. 272 of 2018, Makenji Katnura v. R, Criminal Appeal No. 30 of 2018, Hassan Kamunyu v. R, Criminal Appeal No. 277 of 2016 , Msiba 7

Leonard Mchere Kumwaga v. R, Criminal Appeal No. 550 of 2015 and Shaibu Naiinga v. R, Criminal Appeal No. 34 of 2019 (all unreported). In Wambura Kiginga v. R, (supra), we did not construe subsection (6) of section 127 as to exclude the precondition under subsection (2). Instead, guided by the principle that "each case must be decided largely on its own facts" and that "the core function of courts is to ensure that justice is done by whatever means", we gave the provision a broader conceptualization to mean that; where the only independent evidence is that of a child of tender age, it may be used to sustain conviction notwithstanding the provision of subsection (2). We have been invited to apply a similar approach in the incident case. We shall not agree for the reasons which shall be apparent henceforward. To appreciate the contention, we shall hereunder reproduce the relevant provision which provides as follows: n Notwithstanding the preceding provisions o f this section , wherein criminal proceedings involving sexual offence the only independent evidence is that o f a child o f tender years or a victim o f the sexual offence, the court shall receive the evidence , and may, after assessing the credibility o f the evidence o f the child o f tender years as the

case may be the victim o f the sexual offence on its merits, notwithstanding that such evidence is not corroborated, proceed to convict, if for reasons to be recorded in the proceedings, the court is satisfied that the child o f tender years or the victim o f the sexual offence is telling nothing but the truth." In Nguza Vikings @ Babu Seya & 4 Others v. R, Criminal Appeal No. 56 of 2005 (unreported) which was perhaps not brought to our attention in Wambura case, subsection (6) was narrowly construed so as not to override the conditions under subsection (2). It was taken to mean that, subject to the conditions therein, evidence of a child witness can be used to sustain conviction without corroboration if it is the only independent evidence available. The Court observed as follows: "But at this juncture, we entirely agree with Mr. Marando that the provisions o f section 127 (7) do not override the provisions o f section 127 (2). AH that the section does is to allow the court, in sexual offences, to assess the credibility o f a child witness who is the only independent witness or a victim o f a crime, and convict without corroboration, if the court is satisfied that the child witness told nothing but the truth".

Having so observed and quoted the relevant provision, the Court stated further: "From the wording o f the section, before the court relies on the evidence of the independent child witness to enter a conviction, it must be satisfied that the child witness told nothing but the truth. This means that, there must first be compliance with section 127(7) before involving section 127(2) o f the Evidence Act;ff In Nguza's case therefore, the provision was construed so as to avoid conflict between subsection (7) now subsection (6) and subsection (2) of section 127. We shall base our decision on this authority. We are guided by the rule of statutory interpretation that, a statute should be construed as one document. For the foregoing reasons, therefore, we find that the evidence of PW1 was wrongly admitted. We accordingly expunge it from the record. Whether the remaining evidence is capable of sustaining conviction, shall be considered in line with the second and fifth grounds of appeal. The second point relates to admissibility of exhibit PI. Since the point touches the first and third grounds of appeal, we shall consider the 10

same together with the said grounds. The submission by the learned Senior State Attorney is that, though the exhibit was expunged from the record, the first appellate court was right in relying on the oral account of PW4 to uphold the conviction. Reference was made to the case of Khamis Samwel v. R, Criminal Appeal No. 320 of 2010 (unreported). The complaint in the first ground is that, the decisions in Robinson Mwanjisi v. R (supra) and Aneth Furaha v. R (supra) were wrongly applied. We find no merit on this contention. Both the decisions are in support of the view that, the effect of a document being not read out after admission is expungement from the record. That is what the first appellate court rightly did. After expunging exhibit PI from the record, the first appellate court considered the correctness or otherwise of the conviction of the appellant based on the remaining evidence including the oral account of PW4, We agree with the learned Senior State Attorney that, the approach taken was correct. Therefore, in Huang Qin and Another v. R. Criminal Appeal No. 173 of 2018 (un reported), where, like in the instant case, an exhibit was expunged from the record for being irregularly received, the Court held that the oral evidence of the witness remained intact and valid. l i

In view of the foregoing discussion, therefore, we dismiss the first ground of appeal. We also partly dismiss the fourth ground of appeal to the extent of admissibility of exhibit PI because it has already been determined by the first appellate court. The appellant appears to further complain in the fourth ground of appeal that, the evidence of PW4 was wrongly received because the one who was examined was not the victim but her sister. The claim is not founded on the record. We have scanned the oral evidence of PW4 and all prosecution witnesses. There is nothing to suggest that PW4 examined the sister of the victim as alleged in the said ground or at all. To the contrary, it is the victim who was examined. The complaint is also dismissed for want of merit. The last point is on the sentence. Its relevancy depends on whether the conviction was correct. It may thus be considered at the end of our judgment should the conviction be upheld. Having addressed the legal issues raised by the learned Senior State Attorney, it is appropriate to consider the substance of the appeal, of course, without losing focus of the well-established principle of law that, in the second appeal like this, the Court would only disturb the concurrent 12

factual findings of the lower courts where there is misapprehension of evidence, violation of some principles of law or miscarriage of justice. See for instance, the Director of Public Prosecutions v. Jaffar Mfaume Kawaka, [1981] TLR 149. For convenience, we shall start with the third ground of appeal as to the age of the victim, The claim by the appellant is that the age of the victim was not proved. For the respondent, it was submitted, with all forces that, the same was proved beyond reasonable doubt in the testimony of PW3 who is irrefutably the biological mother of the victim. In accordance with the principle in Isaya Renatus vs. the Republic, Criminal Appeal No. 542 of 2015 (unreparted), evidence as to proof of age can be given by "the victim, relative, parent, medical practitioner, or where available, production of birth certificate". In this case, the evidence on the age of the victim emanated from victim's mother (PW3). She told the trial court that, the victim was five years at the material time. She was not cross examined on that point. Her evidence was also not challenged by the appellant in his defence evidence too. The trial court believed the evidence. Equally so for the first appellate court. This being a pure point of fact and there being no any claim of misapprehension of a pertinent 13

principle of law or evidence, we find no justification to depart from this concurrent factual finding of the lower courts. We thus dismiss the third ground of appeal. This now takes us to the second and fifth grounds of appeal which we shall discuss together under the proposition, "the case was not proved beyond reasonable doubt". The offence with which the appellant was charged is statutory rape. In accordance with section 130-(1) (e), it is committed if a male person has sextual intercourse with a girl who is under 18 years of age with or without consent. After expunging the evidence of the victim (PW6) which would be the best evidence, we remain with the evidence of PW1. It is not in dispute that, PW1 and the appellant knew each other as they used to stay at the same house. It is common knowledge that, the crime in question was committed in the morning. The issue of mistaken identity does therefore not come in. Perhaps, two questions have to be addressed. First, whether the victim was raped on the material day. Second, whether it was the appellant and no one else who committed the offence. It was submitted for the respondent that, if the evidence of PW1 is carefully taken into account with the oral evidence of PW4, it can

establish that, the victim was raped and it was the appellant and no one else who raped her. We shall consider hereunder the said evidence. As we disclosed above, the testimony of PW1 which was not shaken by way of cross examination or independent evidence, was such that when she went at the scene of the crime, she found both the appellant and the victim naked. The appellant was on top of the victim who was crying. On inspecting her private parts, she found some blood. The oral testimony of PW4 which again was not shaken by cross examination or independent evidence shows that, upon conducting examination, he found bruises and sperms together with blood in her private parts. In our view, the fact that PW1 found the appellant on the top of a crying child and found the child after inspection, with bruises in her vagina when linked with the oral evidence of PW4 that, upon being medically examined, the child was found with bruises and sperms together with blood in her vagina, lead to an irreversible inference that the victim was raped and it was the appellant and nobody else who committed the offence. The appellant's defence in as much as it came for the first time after the closure of the prosecution evidence without its foundation being raised by way of cross examination of the prosecution

witnesses cannot rebut the inference. This is more so because despite the evidence of PW1 that he escaped after the incident and arrested on the next day, the appellant did not explain in his defence evidence where had he been before his arrest. Besides, he did not expressly deny in evidence presence at the locus in quo on the material date despite the fact that he heard PW1 in evidence saying that he was there. In our opinion, therefore, the conviction of the appellant was correct and proper. With the above findings, it is necessary to consider the issue of the validity of the sentence. It was submitted for the respondent that, the offence the appellant was found culpable of being rape of a child of five years, the only sentence available in law is life imprisonment. He submitted therefore that; it was wrong for the trial court to impose a sentence of 30 years imprisonment. With respect, we are In agreement with him because under section 131 (3) of the Penal Code, the only sentence available for rape of a girl under the age of ten years is life imprisonment. Thus, the trial court having found the appellant guilty of the offence, he had no option other than imposing the statutory sentence of life imprisonment. 16

In the circumstance, we dismiss the appeal and sustain the conviction. On sentence, we invoke our powers under section 4(2) of the Appellate Jurisdiction Act [Cap. 141 R.E. 2019] and hereby revise the sentence by substituting the 30 years imprisonment with the mandatory sentence of life imprisonment. DATED at BUKOBA this 14th day of July 2022. A. G. MWARIJA JUSTICE OF APPEAL B. M. A. SEHEL JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL The Judgment delivered this 16th day of July, 2022 in the presence Appellant in person and Mr. Juma Mahona, learned State Attorney for the respondent, is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL 0. A. Amworo 17